Suffolk University Law School; Furman Center for Real Estate and Urban Policy

Date Written: December 2012

Abstract

This Essay, written for the David G. Trager Public Policy Symposium at Brooklyn Law School, examines the changing role of transferable development rights (TDRs) in New York City. TDR programs allow property owners to sell unused development capacity at their property and transfer it to another site, where it is typically used to increase the permitted size of a development. New York City’s original TDR programs served two central purposes. First, in the form of Zoning Lot Mergers, they operated as a form of density zoning, allowing property owners to shift development capacity within a defined area. Second, they served to offset the burdens imposed by restrictions on development, particularly landmark preservation regulations. In recent years, TDRs have been used in increasingly sophisticated ways. In reviewing these newer TDR programs, we identify three common attributes: an increased focus on directing the location and density at sites that receive development rights; the use of TDRs as an integral component of more comprehensive rezoning initiatives; and the creation of regulatory incentives that strengthen the market for TDRs. We conclude that TDRs in New York can no longer be understood just as a creative mechanism to soften the effect of rigid zoning restrictions, but should be recognized as well as a tool land use decision makers can use in place of, or in tandem with, upzonings, bonuses, and other devices for increasing density.

Been, Vicki and Infranca, John, Transferable Development Rights Programs: 'Post-Zoning'? (December 2012). Brooklyn Law Review, Vol. 78, 2012; NYU School of Law, Public Law Research Paper No. 12-50; NYU Law and Economics Research Paper No. 12-31. Available at SSRN: https://ssrn.com/abstract=2144808